The recent public discourse on The Administrative State references a runaway bureaucracy’s threat to constitutional government. Not only has Congress improperly delegated much of its law-making power to bureaucrats, the courts, have mostly turned a blind eye to the administrative state power-grab.

Early American Civil Service

Pre-Civil War administrations were largely run on a moderate patronage system—the practice of which jobs in the administration were provided to the winning President’s friends, supporters, and relatives as a reward for their support and an incentive for committed efforts in re-election.

Upon the election of Andrew Jackson, the moderation in patronage vanished as he vigorously pursued fulfilling lavish promises made to supporters during his campaign. As Jackson assumed power, over 900 officials (almost 10 percent of all administration postings) were removed from their positions to make way for Jackson supporters.

From this point on the patronage system was referred to as the “spoils system” in reference to the comment “to the victor belongs the spoils” made by New York Senator William L. Marcy, referring to the Jackson abuse of the patronage system following his election.

By April 1880 a congressional investigation into corruption in the Post Office Department (in which profiteering rings allegedly stole millions of dollars) further fueled civil service reform associations which had organized with renewed energy across the nation.

President Elect James A. Garfield agreed with them—believing that the spoils system damaged the credibility of any presidency and distracted from more important concerns. Following the assassination of President Garfield by Charles Guiteau, because Guiteau believed the president owed him a patronage position for his “vital assistance” in securing Garfield’s election the previous year, the Pendleton Civil Service Reform Act became law.

Known as the Pendleton Act, this law established that positions within the federal government should be awarded on the basis of merit instead of political affiliation. The act provided selection of government employees by competitive exams, rather than ties to politicians or political affiliation. It also made it illegal to fire or demote government officials for political reasons and prohibited soliciting campaign donations on Federal government property.

To enforce the merit system and the judicial system, the law also created the United States Civil Service Commission to determine the rules and regulations of the act. The Act also allowed for the president, by executive order, to decide which positions could be subject to the act and which would not.

This system later became known as The Administrative State, as it was named in Dwight Waldo’s public administration text describing profession and political bureaucracies.

The Administrative State

Today, the administrative state stands in stark contrast to a representative democracy with limited powers and reach. With over 220,000 federal regulators working with a budget of about $63 billion who write and enforce over 185,000 pages of rules that cost the economy around $4 trillion annually, it is clear that’s its scope is far beyond the intents of the Constitution.

To better illustrate the $4 trillion cost of regulatory accumulation: if the regulatory accumulation were a country, it would have the third highest GDP (falling between China and Japan). Based on that comparison it is properly referred to as The Administrative State. It truly has become a despotic power, isolated from its citizens and controlling nearly every aspect of our lives.

In his short nine months in America (1831), Alexis de Tocqueville saw first hand the miracle of America’s political system and marveled at its strength. However, he warned of a future where excessive government regulation “…compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

It was only 80 short years after his warning that America started to accelerate towards the administrative state with its, as Tocqueville described, “network of small complicated rules” bringing about what he would referred to as “soft tyranny.”

The Constitution specifically left the law making to those representatives of the people who could be held accountable through regular elections. The administrative state defies this separation of powers established in Articles I, II, and III—allowing non-elected agencies and their regulators the power to legislate as well as enforce.

The false argument for this power is that all federal agencies/officials are subject to the President of the United States, who is elected accommodating the new power democratically so that it does not need to be voted on directly by the public.

Adherents of the safeguards of power provided by the separation of powers and checks and balances between the three branches point out the public’s inability to vote for the policy that the agency adopts is unconstitutional—and has proven to be inefficient, ineffective, and abusive.

Dr. Michael Greve, a law professor at George Mason University School of Law, defines the administrative state within the United States as, “a power once known as ‘prerogative’—that is, the power to make binding rules without law, outside the law, or against the law, exercised by someone other than an elected legislature.” He continues that this is the opposite intention of the “founders” and has proven out the founders’ fears that all government entities are power hungry.

Court Support of the Administrative State

The Chevron doctrine—named after the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council—provides that when litigants challenge agency decisions in court, judges must “defer to an agency’s interpretation of a statute the agency administers” whenever the law at issue is “ambiguous” and “the agency’s interpretation of the statutory ambiguity is reasonable.”

Those concerned with the Fifth Amendment recognize that today’s implementation of the Chevron doctrine has removed the protection of “due process” by allowing agencies to hold a “hearing” regarding any regulation or policy that deprives a person of their private property.

Chevron may also undermine Congress’ lawmaking power because the Chevron deference encourages members of Congress to delegate broad lawmaking power to federal agencies. Federal bureaucrats are already often substantially involved in drafting the legislation that ultimately delegates to the agencies the primary authority to interpret that legislation.

Additionally, Justice Clarence Thomas, has argued that “Chevron deference precludes judges from “exercising independent judgment” in determining the law because it forces them to favor an agency’s interpretation even if a judge believes there is a better interpretation of the law.

Justice Neil Gorsuch has written that the doctrine has allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution.”

The Auer deference—which came from the Supreme Court’s 1997 decision in Auer v. Robbins—in turn provides that courts ordinarily defer to an agency’s interpretation of its own regulations unless an interpretation is “plainly erroneous or inconsistent with the regulation.”

Another concern with Auer is the constitutionality of placing the lawmaking and law enforcement functions in the hands of a single agency. At the same time there is evidence that agencies are drafting vague regulations and interpreting those regulations through less-formal means after the fact so that the agency can then receive Auer deference.

The concerns about the Chevron and Auer doctrines, are generally about whether they endanger the principles of the separation of powers embodied in the U.S. Constitution. Both Chevron and Auer have contributed significantly to the dangerous consolidation of law-making and law-execution powers in federal agencies and greatly expanded the powers of the administrative state.

In discussing the 2013 case City of Arlington v. FCC, Chief Justice John Roberts wrote a strongly worded dissent, warning of “the danger posed by the growing power of the administrative state.”

A free society cannot long survive the concentration of power from all three branches into one entity—this is the true danger of The Administrative State. By removing lawmaking from the sphere of accountability represented by elections, and the judicious overview of the courts, the administrative state undercuts the rule of law itself; law becomes merely the arbitrary whim of the regulator.